Will Italy's Conviction of Google Execs Stick?

I've no doubt that CMLP blog readers, fellow netizens that you are, are well aware of an Italian court's conviction last week of three Google executives for invasion of privacy of an Italian teenager.

(In case you missed the story, here it is in short: the teenager (who either suffered from Down's syndrome or autism; reports differ) was filmed by four other teens who were bullying him, and the bullies posted the video on YouTube. Google promptly removed the video after receiving a formal complaint. Italian authorities then criminally prosecuted four Google execs for defamation and invasion of privacy. Last week, the Italian court found three of the execs guilty of invasion of privacy; the defamation charges were dropped against all four. More back-story can be found in my 2008 post when the possibility of charges was first announced.)

Of course, Google is apoplectic. Much of the rest of the media world is too: Mathew Ingram of gigaom.com rounds up:

The Wall Street Journal called it “madness,” and suggested it was “crazy, even for Italy,” while the Inquirer called it “a blow against common sense and Internet freedom.” Danny O’Brien of the Electronic Frontier Foundation called it “a threat to the Internet,” and the National Post said it suggested that “Fascism is alive and well.”

And that doesn't include Anna Masera's commentary on The Guardian's website, where she warns that "today Italy is a little bit more Chinese"—in the online oppression sense, of course.

So the vast majority of the responses have been damning of the Italian judge's verdict, and Google has said they're going to appeal. John Naughton writes for The Observer that:

[I]t's likely that they will be vindicated because even if the Italian
appeal fails, there is always the possibility of recourse to the
European Court in Strasbourg, which will take the view that European
Union law, as currently drafted, appears to give hosting providers a
safe harbour from liability so long as they remove illegal content once
they are notified of its existence.

Certainly, that's what I'd expect given what EU law says about all this (again, see my earlier post for more). And I agree with the media criticism above, for the most part. But there are a few outlying opinions suggesting (or indeed stating outright) that Google got what was coming to it. Mr. Ingram writes in his article that the correctness of the Italian judge's decision hinges on what kind of company Google is.

So is Google a media company? Or is it simply a form of Internet
service provider, and therefore not directly responsible for the
content it hosts? Such a distinction is crucial to the Italian
decision. Google argued that the ruling contradicts a European Union
directive that gives service providers safe harbor from liability for content they host (the U.S. has Section 230
of the Communications Decency Act, which gives providers of electronic
services so-called “safe harbor” for content). But prosecutors argued
that because Google handled user data — and used content to generate
advertising revenue — it was a content provider, not a service
provider, and therefore liable.

The question of whether Google is a media company or not, and if so how it should be treated, has been vexing observers for years now.
Its primary business might be search and search-related ads and
marketing, but with YouTube and Blogger and Buzz and other services in
its stable, it’s also part content provider.

Then there's Malcolm Coles, an SEO maven apparently based in Britain, who argues flat out that "Italy was right to find Google guilty." Now, I don't know if Mr. Coles is a lawyer, because he seems to be arguing in largely colloquial moralistic terms and to be taking the prosecutors' statements to the press as proven facts—a risky proposition. But the gist of his arguments is largely that Google "runs a publishing platform" and that the Google execs are "responsible for the systems put in place to stop abusive content being
published. If those systems have failed, it is right that senior
executives are held responsible." So as I interpret it, Coles is invoking liability on the same sort of "content provider" basis that Ingram mentions.

But the problem with this argument (and indeed, Italy's law on the subject) is that I don't believe that EU law (which Italy is required to incorporate domestically) makes such a distinction. Rather than fighting the legal battle over whether Google was "hosting" under Article 14 of the Directive on E-Commerce, Council Directive 2000/31/EC, 2000 O.J. (L 178) 1, (which I discussed in my post in 2008), the Italian prosecutor seems to have been effectively arguing that Google was not an "Information Society service" ("ISS") under Article 1 (2)(a) of Council Directive 98/48/EC, 1998 O.J. (L 217) 18.

Article 1 (2)(a) defines an ISS to be "any service normally provided for remuneration, at a distance, by
electronic means and at the individual request of a recipient of
services." But there's no indication that this definition distinguishes between providers of content and providers of other services. Annex V of the same Council Directive lays out examples of services that fall outside the ISS definition, but none of them are analogous to Google. The closest that Google might come to appearing on that list is under subsection (3), which notes that television broadcasting services are "provided by transmitting data without individual demand for
simultaneous reception by an unlimited number of individual receivers
(point to multipoint transmission)" and thus not ISSes. But YouTube and the Internet generally entail both individual demand (by clicking the link) and point-to-point transmission (from server to user). I just don't see how Google/YouTube is not an ISS, and thus not protected under EU law.

Therefore, I suspect that whatever Italian law says, Italy will lose on appeal. Either the Italian appeals court will recognize that their law fails to square with that mandated by the EU, or, as Mr. Naughton predicted in the Observer, a European court will overturn the Italian decision. Because regardless of however much Italy might like to hold Google responsible for this video, the overriding EU law just doesn't appear to support the court's decision.

(Arthur Bright is a third-year law student at the Boston University
School of Law
and a former CMLP Legal Intern. Before attending law school, Arthur was
the online news editor at The Christian Science Monitor.)

I disagree with the Italian court's decision, but how does this statement in Council Directive 2000/31/EC affect your analysis? (95/46/EC deals with privacy issues relating to processing of personal data.)

"(14) The protection of individuals with regard to the processing of personal data is solely governed by Directive 95/46/EC ... and Directive 97/66/EC ... which are fully applicable to information society services; ... it is not necessary to cover this issue in this Directive ...; the implementation and application of this Directive should be made in full compliance with the principles relating to the protection of personal data, in particular as regards unsolicited commercial communication and the liability of intermediaries...."

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